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2003 DIGILAW 212 (KAR)

MARISHETTY v. LAND TRIBUNAL, NANJANGUD TALUK

2003-02-27

N.K.PATIL

body2003
N. K. PATIL, J. ( 1 ) THE petitioner assailing the legality and validity of the order dated 30-9-1981 in case Nos. LRF 56, 55/74-75 passed by the Land Tribunal, Nanjangud, insofar as 1 acre 6 guntas in Sy. No. 228/3 of Byalaru Village, Nanjangud Taluq has filed this writ petition. ( 2 ) THE case of the petitioner is that, the land in Sy. No. 228/3 of Byalaru village in Nanjangud Tq. , measuring 2 acres 12 guntas excluding 2 guntas of kharab originally belonged to Shettaiah, the father of the petitioner. The said land is the ancestral property. After the demise of the petitioner's father, the petitioner and his brother Madashetty succeeded to the said property. His brother Madashetty was dumb and was unmarried, continued to live with the petitioner till his death. The katha stood in the name of Madashetty, after the demise of their father. The petitioner's brother Madashetty mortgaged the said land in favour of Chikkamma w/o. Rangashetty in the year 1932. Subsequently, simple mortgage was created in favour of Devarajaiah by the petitioner and his sister Sannamma during 1938. Further, the case of the petitioner is that, subsequently, out of 2 acres 12 guntas, an extent of 1 acre 6 guntas was sold in favour of Nagaiah, the 3rd respondent herein and the remaining extent of 1 acre 6 guntas continued to be the property of the petitioner and he is in possession, enjoyment and cultivation of the same as owner. To substantiate his case, he has relied on the RTC for the agricultural years 1971-72 to 1975-76 in which the name of petitioner's brother madashetty is shown as Khatedar, In the cultivators column, the name of madashetty for the year 1971 -72 and Smt. Puttamma w/o. Krishnappa for the years 1973-74 and 1974-75 are shown. He has also produced the RTC for the years 1981-82 to 1985-86 wherein the petitioner's name is shown as cultivator of 1 acre 6 guntas and the kathas stood in the name of his brother madashetty. ( 3 ) WHEN things stood thus, the 2nd respondent herein claiming to be the tenant under the 3rd respondent had filed Form 7 for grant of occupancy rights. ( 3 ) WHEN things stood thus, the 2nd respondent herein claiming to be the tenant under the 3rd respondent had filed Form 7 for grant of occupancy rights. The Land Tribunal registered the same and after considering both oral and documentary evidence, granted occupancy rights in favour of the 2nd respondent to an extent of 2 acres 12 guntas of the land in question. The petitioner was not impleaded as a party to the proceedings before the Land tribunal and behind the back of the petitioner and without issuing notice the tribunal has granted the occupancy rights in favour of the 2nd respondent contrary to the entries found in the RTC extract. The petitioner came to know about the order of the Land Tribunal only when he received notice from the taluka Surveyor of Survey Department in the year 1997. The survey was conducted in the presence of the petitioner and the 2nd respondent. As per the survey and sketch prepared by the Surveyor, the 2nd respondent is in possession of 1 1 guntas in Sy. No. 228/2 and 1 acre 5 guntas in Sy. No. 228/3. The petitioner is in possession of 1 acre in Sy. No. 228/2 and 1 acre 7 guntas in Sy. No. 228/3. Immediately he has presented this writ petition without any further delay assailing the correctness of the order of the Land Tribunal. ( 4 ) HEARD the learned Counsel for the petitioner, learned Counsel for respondent 2 and the learned Government Advocate for respondent 1. The 3rd respondent is served and remained unrepresented. ( 5 ) THE submission of the learned Counsel for the petitioner is that, the petitioner is in peaceful possession and enjoyment of 1 acre 6 guntas in Sy. No. 228/3 and his name was found in the RTC extract as on the date of passing the order by the Land Tribunal. The Land Tribunal has failed to issue notice to the petitioner even though his name was found in the RTC. As per the relevant provisions of the Act, the petitioner is entitle for notice. Therefore, he has submitted that the entire proceedings initiated and concluded by the Tribunal is not sustainable and it is liable to be rejected. ( 6 ) FURTHER, he has submitted that the order of the Land Tribunal is bad in law. As per the relevant provisions of the Act, the petitioner is entitle for notice. Therefore, he has submitted that the entire proceedings initiated and concluded by the Tribunal is not sustainable and it is liable to be rejected. ( 6 ) FURTHER, he has submitted that the order of the Land Tribunal is bad in law. The Tribunal has not conducted enquiry as envisaged under the relevant provisions of the Land Reforms Act and Rules. It is mandatory on the part of the Land Tribunal to follow the prescribed procedures under Section 48-A read with Rule 17 of the Land Reforms Rules. Therefore, he has submitted that the order of the Land Tribunal is liable to be rejected. ( 7 ) PER contra, the learned Counsel for the 2nd respondent, inter alia, contended and substantiated the order passed by the Land Tribunal, He has raised objection regarding the maintainability of the petition stating that the petitioner has no locus standi to maintain this writ petition and on this ground alone, the petition is liable to be rejected. To substantiate his case, he has placed reliance on Annexure-A produced by the petitioner and stated that originally the land belongs to the elder brother of the petitioner, one Sri Madashetty who has initially mortgaged the land in favour of one Smt. Chikkamma w/o. Rangashetty. Thereafter, Madashetty sold the land in favour of Govindaiah s/o. Nanjundaiah under the registered sale deed. In pursuance of the sale, Govindaiah has become the owner of the land in question. Further, he has submitted that the 3rd respondent herein has purchased an extent of 1 acre 39 guntas under the registered sale deed dated 27-2-1964 in No. 482,5/1963-64 and the 2nd respondent is cultivating the land under the 3rd respondent as a tenant. Accordingly, in view of the amendment to the Land Reforms Act, he has filed Form 7 for grant of occupancy rights to an extent of 2 acres 12 guntas which had come up tor consideration before the land Tribunal. The Land Tribunal, after conducting enquiry and after considering both oral and documentary evidence on records granted occupancy rights in his favour. Further, he has submitted that when the petitioner has attempted to interfere with his peaceful possession and enjoyment of the land in question, the 2nd respondent filed a civil suit for permanent injunction. The Land Tribunal, after conducting enquiry and after considering both oral and documentary evidence on records granted occupancy rights in his favour. Further, he has submitted that when the petitioner has attempted to interfere with his peaceful possession and enjoyment of the land in question, the 2nd respondent filed a civil suit for permanent injunction. In the suit, the 2nd respondent filed I. A, for temporary injunction under Order 39, Rules 1 and 2 of the CPC. The Trial Court after hearing both parties, granted temporary injunction in favour of the 2nd respondent. Being aggrieved, the petitioner has filed a miscellaneous appeal before the 1st Appellate Court. The 1st Appellate Court after hearing both sides set aside the temporary injunction granted in favour of the 2nd respondent. Being aggrieved by the order of the 1 st Appellate Court, the 2nd respondent herein has filed CRP in No. 2992 of 2000 which was disposed of on 22-8-2002 by setting aside the order of the 1st Appellate Court and restored the order of the Trial Court. Therefore, he has submitted that, it shows that the 2nd respondent has established his right over the property and is in peaceful possession, enjoyment and cultivation of the same. These facts establish beyond all reasonable doubt that he is the tenant of the land in question. Therefore, he has submitted that the writ petition is liable to be rejected at threshold as not maintainable. ( 8 ) AFTER careful perusal of the order passed by the Land Tribunal, the same is in accordance with law, as the Tribunal has passed the order after considering all the material on records. To substantiate his claim, the 2nd respondent has examined two independent witnesses before the Land Tribunal who have stated that the 2nd respondent is cultivating the land in question since from 15 years on lease basis under the 3rd respondent The Land Tribunal after taking into consideration both oral and documentary evidence has held that the 2nd respondent is cultivating the said land as on 1 -3-1974 and prior to that, as such, he is entitled for grant of occupancy rights and accordingly granted occupancy rights in favour of 3rd respondent as early as on 30-9- 1981. Therefore, on the face of the record, I do not find any error of law as such was committed by the Land Tribunal in granting the occupancy rights in favour of 2nd respondent. ( 9 ) IT is significant to note that, this Court after hearing both sides directed the learned Counsel for the petitioner to produce the sale deed by its order dated 22-10-2002 under which the petitioner and his brother sold the land in Sy. No. 228/3 to the 3rd respondent. In pursuance of the said order, the petitioner has not produced the sale deed executed by the petitioner and his brother late Sri Madashetty in favour of the 3rd respondent. However, he has produced one sale deed copy along with the memo. The said deed has nothing to do with the facts and circumstances of the present case nor it is in obedience of the direction issued by this Court and the petitioner has not complied with the said directions. ( 10 ) AS rightly pointed out by the learned Counsel for the petitioner that the land to an extent of 2 acres 12 guntas in Sy. No. 228/3 was sold by the petitioner's brother in favour of one Sri Govindaiah S/o. Nanjundaiah. The said entry is found in the index of land records maintained by the Competent Authority. Therefore, there is a reference that Madashetty, the petitioner's brother mortgaged the said land in favour of one Smt. Chikkamma w/o. Rangasetty and thereafter entry is in the name of Govindaiah s/o. Nanjundaiah, mutation No. 1044 91d, dated 21-2-1932. The said Govindaiah has sold the land to an extent of 1 acre 39 guntas in favour of 3rd respondent under the registered sale deed dated 27-2-1964. The case of the 2nd respondent is that, he is cultivating the land in question as a tenant under the 3rd respondent since from 1964-65 on guttha saguvali chit which has been referred to in Form 7 filed by the 2nd respondent on 21-6-1976. When these facts are available on records, the petitioner intentionally and deliberately has not stated the true facts. He has made a categorical statement in the writ petition at para 1 that petitioner and his brother Madashetty have sold an extent of 1 acre 6 guntas in favour of the 3rd respondent has no basis, as he has not produced any authenticated documents. He has made a categorical statement in the writ petition at para 1 that petitioner and his brother Madashetty have sold an extent of 1 acre 6 guntas in favour of the 3rd respondent has no basis, as he has not produced any authenticated documents. But contrary, as stated, supra, an extent of 2 acres 12 guntas has been sold in favour of Govindaiah who in turn sold the same to the 3rd respondent. As rightly pointed out by the learned government Advocate and the learned Counsel for the 2nd respondent that the petitioner has no locus standi to maintain this writ petition on the ground of suppression of material facts and he has not approached this Court with clean hands. ( 11 ) IT reveals from the submission of the 2nd respondent that he has filed original suit for permanent injunction. In the said suit he has filed LA. for temporary injunction and said I. A. was allowed and temporary injunction was granted which has been confirmed by this Court in CRP No. 2992 of 2000 by order dated 22-8-2002. These facts clearly establish beyond reasonable doubt that the 2nd respondent is cultivating the said land as on 1-3-1974 and prior to that. Therefore, I do not find any justification to interfere with the order of the Tribunal. The petitioner has not made out prima facie case to interfere with the same. ( 12 ) YET another reason the writ petition is liable to be rejected is on the ground of delay and laches. The order passed by the Land Tribunal was as early as on 30-9-1981. The present writ petition is filed by the petitioner in the month of April 1997. There is an inordinate delay in filing the writ petition. The petitioner has not explained the delay satisfactorily, except stating that he came to know about order of the Tribunal in the year 1997 when he has received notice from the Survey Department. The petitioner is bound to explain each day's delay in approaching this Court. Therefore, the petition is liable to be dismissed on the ground of delay and laches. ( 13 ) HAVING regard to the tacts and circumstances of the case as stated above and taking into consideration the totality of the case, the interference at this stage is uncalled for. Accordingly, the writ petition is dismissed. Therefore, the petition is liable to be dismissed on the ground of delay and laches. ( 13 ) HAVING regard to the tacts and circumstances of the case as stated above and taking into consideration the totality of the case, the interference at this stage is uncalled for. Accordingly, the writ petition is dismissed. However, it is observed that, if the suit filed by the 2nd respondent is pending tor consideration on the file of the Trial Court, the Trial Court is directed to proceed with the case and pass orders strictly in accordance with law, without being influenced by the observation made by this Court during the course of this order. --- *** --- .